A B.C. Supreme Court judge has upheld what the Crown argued at appeal is a “demonstrably unfit” sentence a Surrey judge imposed in a domestic violence case.

Joshua Bailey Delgren, 25, pleaded guilty to assault and was sentenced by a Surrey provincial court judge to a conditional discharge with two years probation. The judge had also declined the Crown’s request to have Delgren provide a DNA sample, despite his lawyer not opposing such an order.

The Crown argued in B.C. Supreme Court in New Westminster that the sentence should be replaced with a three-month conditional sentence order, or house arrest, followed by one year probation.

Justice John Harvey presided.

Harvey heard Delgren had been in a “very difficult and conflictual” relationship with a 22-year-old woman and over four days hit her, choked her, pushed her against a wall, burned her leg with a cigarette, spat on her, head-butted her, threw a mug of water at her and “struck her or placed his hand in her vaginal area.” She had been fully clothed at the time, Harvey noted.

The court heard Delgren straddled the victim in bed, choked her for roughly 30 seconds and head-butted her.

“The victim eventually managed to text her sister words to the effect of ‘get me out of here,’” Harvey noted. “As a result, this matter was reported to police and the charge was laid.”

Harvey noted Delgren “expressed remorse for his actions,” had no criminal record at the time of sentencing “and had been a law-abiding member of the community for the whole of his 25 years.

“He had no history of similar conflicts in previous relationships and had good supports within the community,” Harvey noted in his reasons for judgment. “One of the reasons underlying his actions over the course of the dates set out in the information were his ongoing struggles with drugs and alcohol. He also had some mental health issues, specifically anxiety.”

The Crown argued that the sentence is “demonstrably unfit in the circumstances,” and that the sentencing judge failed to consider if a conditional discharge was contrary to the public interest.

Harvey noted that aggravating factors before the sentencing judge “were the significant acts of violence which occurred in an intimate relationship couple with their intensity and frequency over the course of four days.”

The mitigating factors, he noted, were that Delgren had been “compliant with his bail conditions for over a year, was of Aboriginal heritage, and was willing to accept probationary terms aimed at his rehabilitation and redirection.”

The sentencing judge told Delgren a conditional discharge “would mean that you would not have a criminal record” and she added that it was in her view “that it is clearly in your best interest to receive a conditional discharge, you are young, you want to go forward, you want to be involved and have opportunities.”

The Crown argued that the sentencing judge’s reasons revealed “a total absence of analysis” why the discharge was not contrary to the public interest, while the defence argued she “properly considered whether or not the sentence imposed was contrary to the public interest.”

Harvey said he agreed with the Crown “that there was an absence of analysis as to whether a discharge was not contrary to the public interest” and that “her remarks are conclusory rather that informative as to the rationale sustaining her conclusion.”

“Did the error result in a sentence which was unfit in the circumstances?” the higher court judge asked rhetorically. “I conclude, after performing my own analysis of the circumstances of the offence, the circumstances of the offender, and the sentencing positions advanced below that it was not.”

Harvey explained that a conditional discharge was an available option because there is no minimum punishment for assault.

“While accepting that generally a discharge is not a fit sentence in matters of domestic violence in all those offences at the low end of the violence spectrum, which this is not, exceptions exist. Sentencing is not science and a fit sentence is one tailored to meet all sentencing objectives.”

He noted that under Section 730 of the Criminal Code absolute and conditional discharges are provided for unless the code prescribes a minimum sentence, or a maximum sentence of 14 years or more.

“In this case, there is no minimum sentence. Further, given that the Crown proceeded summarily, the maximum sentence is 18 months.”

Harvey concluded that the terms of probation “serve the needs of general and specific deterrence and denunciation as required by the authorities. I would accordingly dismiss the appeal.”